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Basista Holdings, LLC v. Ellsworth Township

Court of Appeals of Ohio, Seventh District, Mahoning

December 22, 2017


         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CV 03101

          For Appellant: Atty. Frank Bodor

          For Appellee: Atty. James F. Mathews Atty. Tonya J. Rogers Baker, Dublikar, Beck, Wiley & Mathews

          JUDGES: Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb


          WAITE, J.

         {¶1} Appellant Basista Holdings, LLC appeals the decision of the Mahoning County Court of Common Pleas affirming the Ellsworth Township Board of Zoning Appeals ("BZA") decision in favor of Appellee, Ellsworth Township. Based on the following, we find Appellant's assignments of error in this administrative appeal are without merit and the judgment of the common pleas court is affirmed.

         Factual and Procedural History

         {¶2} The parties have a long and tortuous history of litigation in this dispute regarding an 18-acre property located on State Route 45 in Ellsworth Township, Mahoning County, Ohio ("the property"). Appellant is a limited liability company. The owner and sole member of this limited liability company is David J. Lewis. Appellant purchased the property on May 20, 2003. At the time of the purchase the property consisted of two parcels which were consolidated into a single parcel in 2007.

         {¶3} On July 24, 2007, Appellant submitted an application for a zoning certificate to then zoning inspector, Diane Dudek ("Dudek"), to allow for industrial use of the entire property, which had a frontage of 900 feet and a depth of 871 feet. Dudek approved the application in a letter dated September 14, 2007. The approval was taken before the Ellsworth Township Trustees at a meeting on October 8, 2007. These actions triggered a great deal of litigation, a synopsis of which follows.

         The Lyden Lawsuit

         {¶4} A neighboring property owner ("the Lydens") contacted Dudek to inform her that the industrial classification of the property was in error and contrary to the existing 1969 zoning ordinance. The Lydens subsequently filed a lawsuit against Appellant, David Lewis, the Ellsworth Township Zoning Inspector and the Ellsworth Township Trustees, as well as the Ohio Department of Natural Resources. The complaint alleged that the property's prior owner was East Fairfield Coal Company, which had operated the site as a coal tipple until 1970. This use left the property polluted and subject to reclamation under state and federal laws. The property was zoned agricultural, but a nonconforming use by East Fairfield Coal Company had been allowed. The complaint alleged that allowing any industrial use of the property would create additional pollution and damage to neighboring properties and a stream shared by these neighbors and Appellant. Important to all the litigation that followed, Dudek was deposed during the course of this lawsuit. She testified that she had believed the property was zoned industrial at the time she approved Appellant's application, but realized after the Lydens' suit was filed that she was incorrect. She stated that she had never revoked the permit issued to Appellant, however. The lawsuit was subsequently dismissed by the Lydens, but they lodged numerous complaints with the township alleging that Appellant was in violation of the township zoning ordinance.

         The Kurilla Lawsuit - Enforcement Action

         {¶5} Laura Lewis, the wife of David Lewis, was an authorized representative for Appellant and also served on the Ellsworth Township Board of Trustees in 2011. At the suggestion of legal counsel, the township retained Michael Kurilla ("Kurilla") as a deputy zoning inspector to investigate all complaints against Appellant to avoid any conflict of interest while Laura Lewis served as a trustee.

         {¶6} On September 1, 2011, Kurilla issued two notices of zoning violations to Appellant regarding both the subject property and another, separate property owned by Appellant in the township. The other property was subsequently transferred to Laura Lewis and is not involved in this appeal. Appellant appealed Kurilla's notice of zoning violation as to the subject property. In 2012 Appellant submitted a revised site plan for the property, which was denied on October 10, 2012. This denial was also appealed, however, Appellant later dismissed both of these appeals.

         {¶7} As Appellant had failed to remedy the issues regarding the zoning violation, Kurilla, in his capacity as zoning inspector, filed a complaint against Appellant in the Mahoning County Court of Common Pleas. Appellant filed a counterclaim, seeking declaratory judgment regarding the zoning classification of the property. Appellant also sought injunctive relief and monetary damages. While the counterclaim also alleged a violation of the Ohio Open Meetings Act, this claim was later dismissed. Appellant's remaining counterclaims were bifurcated for trial purposes. Trial was held before a magistrate on March 23, 2015. In a decision dated April 8, 2015, the magistrate found that the 1969 Ellsworth Township Zoning Map was unambiguous and that the parties' rights were determined by the Ellsworth Township Zoning Resolution which incorporated this zoning map. Based on this, the magistrate determined that the property was zoned industrial only to a depth of 500 feet. Appellant filed objections, and a hearing was held before the trial court, which adopted the magistrate's decision and dismissed the objections. An appeal of that decision is currently pending in this Court (Case No. 16 MA 0101).

         Federal Lawsuit

         {¶8} On August 27, 2014, Appellant filed a lawsuit in the Mahoning County Court of Common Pleas, alleging the same claims raised in its counterclaims in the Kurilla lawsuit: declaratory judgment, injunctive relief, money damages for a 42 U.S.C. 1983 unconstitutional deprivation of Appellant's use of its property, and a violation of Ohio's Open Meetings Act. The named defendants in that action -Ellsworth Township, Kurilla, Dudek, and other township officials in their official capacity, had the action removed to federal court based on the 1983 claim.

         {¶9} In federal court, the defendants filed a motion for summary judgment alleging Appellant's claim was untimely, which was granted by the district court. The court held that Appellant knew or should have known of its injury in May of 2009 following Dudek's deposition. As the complaint was not filed until August 27, 2014, it was filed after the statute of limitations had run. Ultimately, the district court granted judgment to defendants on the first three claims based on the statute of limitations, and granted judgment to defendants on the allegations regarding the Open Meetings Act, because Appellant failed to produce any evidence of violation. While Appellant did not further appeal the Open Meetings Act claim, Appellant did appeal the other three counts to the Sixth Circuit Court of Appeals.

         {¶10} In an opinion dated October 11, 2017, the Sixth Circuit Court of Appeals held that the statute of limitations on the 42 U.S.C. 1983 claim began to run when Appellant attended Dudek's deposition in May of 2009. Basista Holdings, LLC v. Ellsworth Twp., 6th Cir. No. 16-4112, 2017 WL 4534808. In her deposition testimony, Dudek admitted that her decision to approve Appellant's permit was not valid, and she was mistaken that the property was located within an industrial zone. At that point, Appellant was put on notice that its legal rights were at risk. Therefore, the Sixth Circuit affirmed the district court's dismissal of the 42 U.S.C. 1983 claim. Id. at *4. The Sixth Circuit also affirmed the district court's dismissal of Appellant's state law claims based on res judicata. Appellant had argued that the federal district court lacked jurisdiction over state claims once it concluded the federal claim was barred by the statute of limitations. The Sixth Circuit held, "Once the § 1983 claim was dismissed, however, the district court had the discretion to decline to exercise its supplemental jurisdiction over the state-law claims." Id. at * 6. However, the Sixth Circuit concluded that, as the district court had spent nearly two years on this matter, the court was "very invested in this case, and was undoubtedly familiar with the parties, the facts, and the claims." Id. at *5. Because the state law claims filed by Appellant and removed to federal court were virtually identical to those claims already decided in the Kurilla enforcement action in Mahoning County Common Pleas Court, the federal district court was correct in dismissing them based on res judicata. The Sixth Circuit acknowledged that the claims decided by the common pleas court and those pending in federal court involved the same parties, same facts, same legal basis and same requests for relief. The Sixth Circuit determined that, although an appeal of the state claims was pending in the state court system, this did not preclude the doctrine of res judicata from taking effect. Id. Therefore, the Sixth Circuit held the remaining Ohio law claims were barred by this doctrine. Id. at *7.

         Current ...

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